Supreme Court Grants Certiorari in Intel v. AMD

November 10, 2003. The Supreme Court granted certiorari in Intel v. AMD, a case regarding the availability of a discovery order from a U.S. District Court, pursuant to 28 U.S.C. § 1782, for a complainant in an antitrust matter before the European Commission. See, Order List [8 pages in PDF] at page 2.

Advanced Micro Devices (AMD) and Intel have a long history of competing in the production of microprocessors -- and in the courtroom. AMD filed a complaint with the Directorate General - Competition of the European Commission alleging that Intel violated Article 82 of the EC Treaty, which prohibits "abuse by one or more undertakings of a dominant position within the common market."

AMD then sought discovery from Intel under 28 U.S.C. § 1782, which provides that "The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal ..." AMD sought documents pertaining to another antitrust action in the U.S. against Intel (a matter regarding Intergraph). Intel objected. AMD then sought to compel discovery in the U.S. District Court (NDCal). The District Court held that the EC action was not a proceeding within the meaning of Section 1782. AMD appealed.

On June 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] holding that discovery is available in the U.S. pursuant to 28 U.S.C. § 1782 for a complainant in an Article 82 antitrust matter before the European Commission.

The Court of Appeals stated that Section 1782 is broad and inclusive and includes quasi judicial and administrative bodies, and preliminary investigations leading to judicial proceedings. It held that "the EC is an administrative body and that the investigation being conducted by its Directorate is related to a quasi- judicial or judicial proceeding. AMD has the right to petition the EC to stop what it believes is conduct that violates the EC Treaty, to present evidence it believes supports its allegations, to have the EC evaluate what it presents and to have the resulting action (or inaction) reviewed by the European courts. Although preliminary, the process qualifies as a ``proceeding before a tribunal´´ within the meaning of 28 U.S.C. § 1782."

Moreover, the Appeals Court held that Section 1782 does not "require a threshold showing on the party seeking discovery that what is sought be discoverable in the foreign proceeding." The Appeals Court reversed and remanded to the District Court. Intel then petitioned the Supreme Court for writ of certiorari.

The Solicitor General (SG), at the request of the Supreme Court, submitted an amicus brief. He urged the Supreme Court to grant certiorari.

The SG wrote that "The petition raises important and unsettled matters respecting the rights of an applicant to obtain discovery of information in United States courts under 28 U.S.C. 1782 for use ``in a proceeding in a foreign or international tribunal.´´"

The SG further wrote that there is a conflict among the circuits "on whether Section 1782 authorizes production of materials only when they would be subject to compelled disclosure in the foreign proceeding in which the material would be used. That recurring issue presents a matter of considerable importance that is ripe for this Court's resolution."

The SG also wrote that "Intel's second and third questions, which focus on whether the European Commission's investigation into anti-competitive practices constitutes ``a proceeding in a foreign or international tribunal" and whether AMD would be an ``interested person´´ with respect to those ``proceedings,´´ present relatively narrower issues that have not generated mature conflicts among the courts of appeals. The petition nevertheless should be granted on those issues as well so that the Court may address the full range of interrelated issues raised under Section 1782 in this case."

The Supreme Court's Order List states only that "The petition for a writ of certiorari is granted. Justice O'Connor took no part in the consideration or decision of this petition." It does not clarify whether the Court granted certiorari as to all of the issues raised by Intel.

The U.S. Chamber of Commerce submitted an amicus curiae brief [24 pages in PDF] urging the Court to grant certiorari. It argued that "Under the Ninth Circuit's ruling, any company that operates abroad can obtain nearly unlimited access to the business documents and competitive plans of its business rivals by filing a complaint with the European Commission and then seeking discovery under 28 U.S.C. § 1782. Under the Ninth Circuit's decision, the company is allowed this discovery without taking on any costs or risks of litigation, even though the discovery is not necessary to the decisionmaking of the Commission. By breezing past the statutory requirements that limit Section 1782 discovery to an ``interested person´´ ``for use in a proceeding in a foreign or international tribunal´´ and ignoring the discovery rules of the European Commission, the Ninth Circuit's ruling, if not reviewed by this Court, would open the door to businesses seeking to harass and obtain sensitive information from their U.S.-based rivals by exploiting the liberal discovery rules of the United States."

This case is Intel Corporation v. Advanced Micro Devices, Inc., Supreme Court No. 02-572, on petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, Appeals Court No. No. 02-15070, an appeal from the U.S. District Court for the Northern District of California, Judge William Ingram presiding, D.C. No. CV-01-07033-WAI.

See also, story titled "9th Circuit Rules on Discovery in U.S. for EC Antitrust Proceeding" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.